The Honorable Board of Supervisors
County of San Mateo
400 County Government Center
Redwood City, CA 94063
Dear Members of the Board:
I serve as counsel to the Aircraft Owners and Pilots Association (AOPA), which is a membership organization that represents the interests of more than 389,000 pilots and aircraft owners throughout the United States. AOPA's members engage in the segment of aviation known as "general aviation," which is all of aviation except the airlines and the military and which accounts for about two thirds of the flying (in terms of hours flown) in the National Airspace System. AOPA is organized for the benefit of all persons whose interests relate to the preservation and promotion of all aspects of general aviation, including reasonable and appropriate access to flight training. AOPA has been very active on the national, state, and local levels in examining issues related to general aviation, in general, and to flight training, in particular. As part of AOPA's services to its members and as a spokesperson for general aviation interests in the United States, it participates in lawsuits to halt or forestall actions, particularly in state and local regulatory areas, that are illegal and harmful to AOPA members and their flight activities. In this regard, AOPA seeks to protect rules, processes, and policies that may preserve consistent, reasonable, safe, and secure access to our nation's airspace.
We are aware that the county of San Mateo recently enacted an ordinance that requires the completion of a "Flight School Applicant Security Questionnaire" and verification by the sheriff's office of the identity of persons seeking flight training at airports in the county of San Mateo. The ordinance requires flight school operators to deny a person flight training until this verification is successfully completed, and in the event that any of the person's information is found to be untruthful, the person is to be denied all flight training. However, a law imposing this type of local security verification process of flight training applicants is a violation of federal law because it attempts to regulate in the aviation security field, a field already occupied by the federal government. Therefore, we urge you reconsider your adoption of the ordinance.
At the outset, we wish to assure you that safety and security in the aviation environment is of great interest to AOPA's members. However, the maintenance of a uniform, federal regulatory system of aviation safety and security, under the sole control of the federal government, is also of paramount interest to our members.
The county's ordinance seems to be unprecedented in the flight school environment in its request that the flight student provide such detailed background information as previous addresses, birthplace, maiden names, and employment information, which is then forwarded by the flight school to the local law enforcement authorities for investigation. As we understand it, the ordinance was adopted in order to address the threat presented by persons using false identities to apply to a flight training school, as was apparently the circumstance of two of the September 11th hijackers. Furthermore, the ordinance was intended to be "in keeping with the federal process developed to implement the Aviation and Transportation Security Act, passed by Congress in November 2001." However, that act gave direction to federal agencies to take action to make the national aviation system secure, including the Federal Aviation Administration, the Transportation Security Administration, and the attorney general. This is not an area for local authorities to address and implement aviation security laws, apart from that required by federal rulemaking, especially when doing so would create an inconsistent and patchwork approach to a common, national goal. The ordinance exceeds any county authority to attempt to regulate aviation security.
In particular, the county's ordinance constitutes a violation of the Supremacy Clause of the United States Constitution, Article IV, clause 2, as it legislates in a field (i.e., aviation security) that is completely preempted by federal law. Federal preemption of local laws regulating aviation is particularly well-established in the field of pilot identification, qualification, and certification. See e.g., French v. Pan Am Express, Inc., 869 F.2d 1 (1st Cir. 1989) ("The intricate web of statutory provisions affords no room for the imposition of state-law criteria vis-à-vis pilot suitability"); see also 49 U.S.C. § 44703(a) ("The Administrator of the Federal Aviation Administration shall issue an airman certificate to an individual when the Administrator finds, after investigation, that the individual is qualified for, and physically able to perform the duties related to, the position authorized by the certificate."). In addition, the ordinance stands as an obstacle to and conflicts with the goals of Congress to achieve, among other things, the national uniform regulation of aviation security, subject to federal government control and oversight Congress vested sole power and responsibility over aviation safety and security in the federal government.
Historically, the plain language of the FAA's enabling statute makes it clear that aviation security was a sole, federal responsibility. In 49 U.S.C. § 40101(d), Congress stated the policy behind the FAA's carrying out of subparts III and IV was to "assign, maintain, and enhanc[e] safety and security...as the highest priorities in air commerce," as well as to "regulat[e] air commerce in a way that best promotes safety and fulfills national defense requirements." Section 40103(b)(3) grants the FAA the power to control the use of airspace in order to "establish security provisions that will encourage and allow maximum use of the navigable airspace by civil aircraft consistent with national security." In carrying out its responsibilities, Congress mandated that the FAA " shall consider requirements of national defense and commercial and general aviation." 49 U.S.C. § 44903(c) (emphasis added). Further, the FAA "shall consider safety and security as a highest priority in air commerce, regulating air commerce in a way that best promotes safety and fulfills national security." 49 U.S.C. § 40103(d)(emphasis added). One of the FAA's main purposes is to promote safety in air commerce. In furtherance of this goal, § 44701(a)(5) directs the FAA to do so by promulgating "regulations and minimum standards for other practices, methods, and procedure the Administrator finds necessary for safety in air commerce and national security." (Emphasis added). In § 44903(b) of Title 49 U.S.C., Congress conferred upon the FAA the power to "prescribe regulations to protect passengers and property on an aircraft operating in air transportation or intrastate air transportation against an act of criminal violence or aircraft piracy."
Moreover, Congress' recent enactment of the Aviation and Transportation Security Act confirms the unequivocal congressional intent that the federal government be the sole, controlling authority in this area. That act maintains the pervasity in the field of aviation security grants the Federal Aviation Administration ("FAA") and the Transportation Security Administration ("TSA") concurrent exclusive federal jurisdiction. Of particular relevance, in passing the Aviation and Transportation Security Act, Congress directed the FAA to modify its system for issuing airman certificates as may be necessary to make the system to ensure the positive and verifiable identification of each individual applying for or holding a certificate. See 49 U.S.C. § 44703(g). In determining the appropriate modifications, the FAA is to consult with representatives of state and local law enforcement officials.
For your reference, I am enclosing copies of an exchange of letters that we recently had with the FAA as they relate to the issues raised by the county's ordinance. In the FAA's letter, the FAA's deputy chief counsel explains and describes the FAA's exclusive authority in the area of pilot qualification.
In sum, Congress has pervasively legislated in the field of aviation security, granting the federal government concurrent and exclusive jurisdiction. The language and legislative history of the FAA and TSA statutes, the historical exercise of FAA authority, and logic demonstrates that centralizing security and making regulations for security uniform across the nation is the best way to achieve the goal of a secure aviation system. The county's ordinance intrudes into the federally controlled area and interferes with its federal purpose. As such, the ordinance should be repealed.
This is not to imply that there cannot be local initiatives to help secure our local airports and the surrounding communities. Over the years, and in particular in the past 15 months, AOPA has demonstrated its concern for security in aviation by promoting pilot education in recognizing and reporting suspicious activities at airports. In fact, AOPA's nationwide Airport Watch program has been implemented in partnership with TSA and provides a toll-free hotline number for persons to call (866/GA-SECURE). In our experience, most pilots are vigilant in this regard and exercise efforts to maintain a secure airport and operational environment. AOPA is willing to work with the county of San Mateo to develop voluntary programs that can help to successfully address any security concerns.
Kathleen A. Yodice
December 12, 2002